In Florida, a landowner has no duty to protect an invitee on his property from a criminal attack by a person over whom the landowner has no control unless the criminal act was foreseeable. Ameijeiras v. Metropolitan Dade County, 534 So.2d 812 (Fla. 3d DCA 1988).
A Florida, a condominium, apartment complex or property management company owner has a duty to protect an invitee on his premises from a criminal attack that is reasonably foreseeable. Admiral’s Port Condominium Ass’n, Inc. v. Feldman,426 So.2d 1054 (Fla. 3d DCA), review denied, 434 So.2d 887 (Fla. 1983); Medina v. 187th Street Apts., Ltd., 405 So.2d 485 (Fla. 3d DCA 1981); Fernandez v. Miami Jai-Alai, Inc., 386 So.2d 4 (Fla. 3d DCA 1980), appeal after remand, 454 So.2d 1060 (Fla. 3d DCA 1984); Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980).
$4.5 Million Verdict for 2 Deaths from Poor Security at Apartment Complex in Broward County, Florida
The Gatehouse by the Green apartment complex was in Plantation, Florida. The plaintiff, as personal representative of the decedents’ estate[s], sued the defendant, sued claiming the defendant’s negligence was a proximate cause of the deaths.
The lawsuit alleged the defendant did not maintain the premises in a reasonably safe condition. The jury found the defendant forty percent comparatively negligent, and awarded damages of 4.5 million dollars apportioned to various survivors of the decedents.
Actual case (not mine): In Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98, 100 (Fla. App. 1980), the decedent was raped and murdered inside her apartment, while she was a tenant in the defendant’s apartment complex.
The intruder, thought to have been a co-tenant apparently gained access into the second story apartment through a window which fronted onto a common outside walkway.
The decedent’s estate brought an action against the apartment complex alleging negligent failure to provide reasonable security measures in the building’s common areas.
The appeal court determined that the landlord had “recognized the dangerous nature of its premises in at least two ways”:
(a) by not accepting cash rental payments, and
(b) by previously hiring uniformed armed guards to patrol and protect the complex and charging each tenant an additional five dollars a month for this service, a practice that had been stopped by the time the decedent was killed. The charge continued to be collected with the monthly rent.
The appeals court held that since the basis of the plaintiff’s case is the almost indisputed fact that the intruder could have entered the apartment only through the common walkway adjacent to the decedent’s window, it was for the jury to determine whether the defendant’s alleged breach of duty as to the areas outside the apartment was a legal cause of what happened inside.
As to the apartment complex’s argument that because the assailant was probably a co-tenant, reasonable security measures would not have prevented the tragedy, the appeals court found that the apartment complex did not affirmatively demonstrate that the security measures would not have deterred the assailant, or that the security officers would not have seen and stopped the assailant from entering the apartment.
The case was allowed to go forward.
Actual Case (not mine): Levitz v. Burger King Corp., 526 So. 2d 1048, 1049 (Fla. 3d DCA 1988), At approximately 12:15 A.M., Stanley Levitz bought a drink at a Burger King restaurant drive-through window. Some of the people who were congregating in the restaurant parking lot shouted comments about his car.
Thinking that he recognized a person in the group, he drove over and stepped out of his car; he was severely injured during an altercation with Richard Darren Sleter. Levitz sued Burger King Corporation to recover damages for injuries he alleged he sustained as a result of Burger King’s negligence.
He argued that Burger King breached its duty to use reasonable care to protect business invitees from the foreseeable danger of an injurious attack occurring on its premises.
Burger King contended that it lacked actual or constructive knowledge of the particular risk and had no reasonable opportunity to protect Levitz. Burger King asserted that Levitz failed to present evidence that Burger King had notice of dangerous incidents involving its invitees and thus could not establish that Burger King breached its duty to Levitz.
Levitz submitted depositions and an affidavit which provided sufficient evidence of the existence of unresolved factual issues, including the foreseeability of the attack in the restaurant parking lot.
The appeals court let the man continue his lawsuit.
Tenants Injury Claims against Landlords in Florida
Actual Case (not mine): In Paterson v. Deeb, 472 So.2d 1210 (Fla.Dist.Ct.1985) held Florida landlords to a statutory duty to protect their tenants from the criminal acts of third persons.
In that case, a female tenant was sexually assaulted by an unknown assailant in her apartment building, which had a front door with a faulty lock and a rear door with no lock.
The woman had previously notified the landlord of the inadequate security and had expressed concerns for her safety. A Florida statute in effect at the time the lease was signed, § 83.51, Florida Statutes (1981), required a landlord to provide leased premises “with locks and keys” in the leased areas and the common areas, and to maintain the common areas of the premises in a “safe condition.”
Recognizing the general rule in Florida regarding the nonliability of landlords in such contexts, the court in Paterson v. Deeb nonetheless held that § 83.51 created a duty on the part of the landlord to provide protection from criminal attacks by third parties, regardless of an absence of prior similar incidents:
“Since the purpose of the statutory duty to provide locks is the prevention of criminal acts by unauthorized persons having unrestrained access to the premises, we conclude that the landlord’s duty to reasonably provide protection from criminal attack does not have to be implied from prior similar occurrences on the leased premises.”
The Florida court went on to discuss at length the foreseeability issue in the causation context and stated:
“In view of the obvious purpose of the statutory duty to provide locks and security to prevent potential [damage] caused by the acts of unwarranted trespassers on the leased premises, we expressly decline to require as the essential predicate to liability allegation and proof that the landlord had actual or constructive knowledge of prior similar criminal acts committed on the premises.
We are not willing to give the landlord one free ride, as it were, and sacrifice the first victim’s right to safety upon the altar of foreseeability by adhering to the now-discredited notion that at least one criminal assault must have occurred on the premises before the landlord can be held liable. Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653 (1985).”
The Florida court then concluded by saying that “the issue of foreseeability in this case is not a question of law essential to the element of the landlord’s duty, but is a question of fact for the jury on the element of causation.”
In the Admiral’s Port Condo case, Mr. and Mrs. Feldman were unit owners in the Admiral’s Port Condominium complex in Aventura, Florida. The Association had established security procedures involving ingress and egress to the buildings occupied by the unit owners.
Mrs. Feldman was mugged in the northeast parking lot of the complex. She sustained physical injuries. Prior to the time of the foregoing event no crimes against persons had been reported on Admiral’s Port property.
The Admiral’s Port Condo case, the appeals court said that the duty of care owed by a landowner to an invitee with respect to protection from criminal acts of a third person is dependent upon the foreseeability of that third party’s activity. Medina v. 187th Street Apartments, Ltd., 405 So.2d 485 (Fla. 3d DCA 1981); Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980).
The appeals court said that a jury is not allowed to hear about a violent crime which had occurred substantial distances away from the premises in the case. Evidence of similar crimes committed off the premises and against persons other than the landowner’s invitees is not proof of foreseeability. Highlands Insurance Co. v. Gilday, 398 So.2d 834 (Fla. 4th DCA), petition for review denied, 411 So.2d 382 (Fla. 1981).
The appeals court said that the Feldman’s failed to show any evidence that the Association should reasonably have been on notice to take reasonable steps to guard against crimes against persons on its parking lots. It also said that the Feldman’s did not show that the Association breached any duty owed them with respect to the security measures that it did use. See Ten Associates v. McCutchen, 398 So.2d 860 (Fla. 3d DCA), petition for review denied, 411 So.2d 384 (Fla. 1981).
The Admiral’s Port Condo appeals court granted judgment for the condominium association. (The injured lady lost her case.)
The condominium or apartment complex’s duty arises only when he has actual or constructive knowledge of similar criminal acts committed on his premises. Paterson v. Deeb, 472 So.2d 1210 (Fla. 1st DCA 1985), review denied, 484 So.2d 8 (Fla. 1986), and 484 So.2d 9 (Fla. 1986); School Bd. of Palm Beach County v. Anderson, 411 So.2d 940 (Fla. 4th DCA 1982); Medina; Relyea.
In the Medina case, Virgilio Medina, was mugged in the defendants’ parking lot. When the assault occurred, he was returning to his car after escorting two young ladies who lived in the apartment complex home from church services.
He sued the apartment complex, claiming that it was negligent by their failure to:
(1) warn persons lawfully on the premises of the danger of criminal assaults;
(2) take reasonable measures to provide safe ingress and egress;
(3) limit access to the parking lot; and
(4) provide security protection to invitees within the complex.
The apartment complex manager indicated that he had actual knowledge that persons had been mugged in the complex. A police officer testified that due to domestic disputes, juvenile disturbances, and breaking and entering of apartments, he would classify the apartment as a high crime area.
The Medina appeals court said that where facts are in dispute as to the previous criminal activities in the complex and the knowledge of these activities on the part of the defendant, foreseeability is a question for the jury to determine. See Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.3d DCA 1980).
In personal injury/negligent security case, it helps the injured person’s case if violent crimes were reported to the condominium, apartment complex or property management company in the two years prior to the attack on him or her.
It may help his case if he can find evidence that the condominium, apartment complex or property management company knew of the existence of violent criminal activity at the premises.
In the absence of proof that it had actual or constructive notice of similar criminal activity at the condominium, apartment complex or property management company, they may not be held liable for the attack on the victim because, as a matter of law, the attack was not foreseeable.
If it is foreseeable that a crime will occur on the premises, the building should have security. If they should have security but do not, you make have a personal injury case against the condo association or property manager.
Actual Case (not mine): In Allen v. Babrab, Inc., 438 So.2d 356, 357 (Fla. 1983), Pearl Allen, and a companion were patrons of the Gemini Club in the evening.
As the two women left the club in the early morning hours and proceeded to their car in the Gemini Club’s parking lot, a male patron of the club, Leroy Allen (not related to the plaintiff), approached them.
Pearl Allen and her companion rebuffed Leroy Allen’s advances, and the trio exchanged harsh words. After pouring his drink on the companion, Leroy Allen threw the glass, which struck Ms. Allen in the face and permanently blinded her in the left eye.
She sued the bar owner for damages. The jury returned a verdict for Ms. Allen against the club.
The Florida Supreme Court said that the owner of a place of public entertainment will not be held liable for the unforeseeable acts of third persons, but, specific knowledge of an individual’s dangerous propensities is not the exclusive method of proving foreseeability.
It can be shown by proving that, based on past experience, a proprietor knew of or should have recognized the likelihood of disorderly conduct by third persons in general which might endanger the safety of the proprietor’s patrons. Foreseeability of an intervening cause is a question for the jury. Gibson v. Avis Rent-a-Car System, Inc., 386 So.2d 520 (Fla. 1980).
The Gemini Club had a history of fighting and other disturbances. Prior to the date of the assault, Babrab had employed a “bouncer” to maintain security on the premises.
The bouncer’s duties included patrolling the parking lot and preventing patrons from removing glasses from the bar. Despite urgings to the corporate officers by the bartenders that such security was needed, no such employee was on duty the night of Pearl Allen’s assault.
The evidence was sufficient for the jury reasonably to find that Babrab should have known of the likelihood of injury to patrons caused by disorderly conduct on the part of third parties in general and failed to do anything about it.
It is a close question as to whether this failure caused or contributed to the plaintiff’s injuries, but the jury could have reasonably concluded that, if Babrab had continued its previous policy of hiring security personnel to take glasses from patrons as they left the club and to patrol the parking lot, the injury suffered by Pearl Allen would have been prevented.
The Florida Supreme Court let the woman’s jury verdict stand.
Actual Case (not mine): In Stevens v. Jefferson, 436 So. 2d 33 (Fla. 1983), Earl Sidney Jefferson was shot and killed in a bar by a fellow patron. Stevens owned and operated the bar.
Jefferson’s widow sued the bar Stevens, the bar owner and operator. She alleged and proved that previously there had been numerous shootings and fights in the bar, and that the owner had failed to train or equip employees to maintain order.
She claimed and proved that no security personnel had been employed when the owner knew or should have known that his patrons were being exposed to risk of harm from fights or shootings by other patrons.
In effect Mrs. Jefferson showed that Stevens either created a dangerous condition or allowed one to exist by the manner in which he ran his establishment. She did not claim that Stevens knew of any dangerous propensities of Jefferson’s assailant.
Stevens contends that Jefferson cannot prevail because of that lack of knowledge. The Florida Supreme Court disagreed with Stevens.
Mrs. Jefferson met her burden by showing that the bar was a “rough” place with a history of fights and gunplay and that the owner had terminated all security service and had left the premises in the charge of a female employee who could not maintain order.
Under these facts a jury could determine that a foreseeable risk of harm to patrons existed, that the risk was either created or tolerated by Stevens, that he could have remedied the danger but failed to do so, and that because of that failure to perform his duties Jefferson was killed.
Admissibility of Evidence of Dissimilar Incidents
Actual Case (not mine): In Holiday Inns, Inc. v. Shelburne, 576 So.2d 322, 331 (Fla.App.1991), injuries and the death resulted from an altercation between two groups of individuals who had been drinking at the Rodeo Bar in the Fort Pierce Holiday Inn.
One group was composed of the following couples: the Bennetts, the Smiths, the Carters, and the Parramores. The second group consisted of Robert Shelburne, Scott Turner, David Rice, Lisa Fuston, and others.
On the night of the incident the driver of the car carrying the latter group attempted to park at the Holiday Inn. A security guard prevented him from doing so. Consequently, he parked in the adjacent parking lot of Ingram’s Fruit Stand, a business that was temporarily closed.
Both groups spent time in the Rodeo Bar, leaving at closing time. As some individuals were moving toward their respective vehicles, they exchanged remarks and ultimately a fight erupted.
During the course of the physical combat Carter shot Turner, Rice, and Shelburne. Rice died from his wounds.
Holiday Inn was found liable and Turner was awarded $3,825,000 for his injuries, Shelburne received $1,000,000, and the Rice interests were awarded $1,000,000.
The court allowed into evidence a report consisting of 58 pages of prior criminal incidents which took place at the same bar where the current incident occurred.
These prior incidents were different to the crime which was the subject of the present lawsuit. The appeals court stated that while evidence of prior similar incidents are helpful, a rule limiting evidence of foreseeability to prior similar incidents deprives the jury of its role in determining the question of foreseeability.
Limitation on premises liability for convenience businesses
Fla. Stat. § 768.0705 states that the owner or operator of a convenience business that substantially implements the applicable security measures listed in ss. 812.173 and 812.174 shall gain a presumption against liability in connection with criminal acts that occur on the premises and that are committed by third parties who are not employees or agents of the owner or operator of the convenience business.
Gated Community
If the apartment building or condominium is a gated community, it makes the victim’s case tougher. This is because the condo association or apartment building owner will argue that a gate is a reasonable safety measure.
The type of access to the gate is a factor on how much the gate increased, if at all, the security. If anyone could open or get through the gate, then this may make the personal injury case easier.
Inoperable Security Gate
An injured person or his estate may be able to raise a reasonable inference that the apartment’s broken gate may have contributed to a crime that happens on the inside of the apartment. Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla. 3d DCA 1980).
Cause
In order to get the case to a jury, the victim’s evidence needs to create a question of fact as to whether the apartment complex more likely than not caused the victim’s injury or death.
It may help if the victims’ security expert testifies that the majority of the crimes that happened at the apartment complex were opportunistic crimes, including an armed robbery initiated when a resident was accosted in the parking lot of the complex.
The apartment complex may have an inoperable security gate. The gate’s purpose may be to limit access to the premises only to those authorized to be on the grounds.
A reasonable jury can determine that an apartment complex’s failure to maintain the security gate and failure to have the courtesy officer visible probably allowed the assailant(s) to get to the decedents’ door more easily without being detected. Sanders v. ERP Operating Ltd. Partnership, 157 So. 3d 273 – Fla: Supreme Court 2015.
Security Guard Service
If guard service was provided at the building, it makes the injured person’s case tougher. If the guard service was 24 hours a day, it makes the case tougher.
If the guard service was during the evenings, it may make the case tougher.
If the guards are condo or apartment complex employees, then your case will likely be against the property owner and management company. If the guards are employees of a third party company, you may also have a case against the security company.
Your personal injury case may also be more difficult if the:
- Complex hired off duty police as security.
- Security is armed.
- Building has Closed circuit TV (e.g. security cameras)
Who insures Florida condominiums and apartment complex for injury claims due to crimes by third parties?
- Philadelphia Insurance Companies
- Old Dominion Insurance Company
- Westfield Insurance Company
- Federal Insurance Company
- Southern-Owners Insurance Company
- Rockhill Insurance Company
- Granada Insurance Company
- Scottsdale Insurance Company
- First Community Insurance Company
- Hartford Casualty Insurance Company
- Depositors Insurance Company (part of Allied Insurance, which is part of Nationwide)
- Zurich American Insurance Company
- Nationwide Insurance Company of America (owns Scottsdale)
- American Economy Insurance Company
- State Farm Florida Insurance Company
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